Wakilii

Birungi v Kakyo [2022] UGHCCD 244

High Court · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from Chief Magistrate's decision upholding Grade II Magistrate's maintenance and custody orders
Decision
Appeal partly allowed. Custody to mother confirmed. Maintenance orders varied. Maintenance arrears set aside. Each party to bear own costs.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On second appeal in a custody and maintenance dispute, the High Court held that custody of the four-year-old child was properly granted to the mother who had been sole caretaker since birth. The court invoked exceptional jurisdiction to order continued parental support for the 19-year-old daughter pursuing university education, though maintenance under the Children Act is limited to those under 18 years. The monthly maintenance award was reduced as excessive given the appellant's net salary of UGX 700,000. Maintenance arrears were set aside where no prior order existed, and costs were denied to promote family harmony.

Outcome

Appeal partly allowed. Custody to mother confirmed. Maintenance orders varied. Maintenance arrears set aside. Each party to bear own costs.

Facts

The appellant father and respondent mother cohabited for six years and had two children: a daughter now aged 19 years studying at university, and a son aged four and a half years. They separated in 2018 after developing misunderstandings. The respondent, who had been the sole caretaker of both children since birth, filed a maintenance application in the Family and Children's Court in February 2022. She contended that the appellant, a Sub-County Chief earning UGX 900,000 gross monthly salary, had married another woman and was not providing maintenance. The appellant acknowledged the children were his but argued the respondent enrolled the daughter to university without consulting him, and that his net salary of UGX 700,000 was insufficient given his other obligations including a wife, another daughter, ill mother, aging grandmother, and a bank loan. The trial magistrate granted custody to the respondent and ordered substantial maintenance including arrears. The Chief Magistrate upheld the decision on first appeal.

Issues

  1. Whether the learned Chief Magistrate failed to properly re-evaluate the evidence on record regarding custody of the minor.
  2. Whether the learned Chief Magistrate erred in law when he re-tried and allowed a claim on maintenance in respect of an adult girl now aged 20 years old.
  3. Whether the learned Chief Magistrate made maintenance orders which are excessive in nature.
  4. Whether the learned Chief Magistrate erred in law when he granted maintenance arrears in the absence of a prior order.
  5. Whether the learned Chief Magistrate erred in law when he upheld the trial court orders on costs of the suit.

Orders

  • Custody of the minor child (W) granted to the Respondent.
  • Both parents to offer support for the adult daughter (D): Appellant to pay university tuition and academic expenses; Respondent to pay hostel fees and costs.
  • Appellant to pay monthly maintenance of UGX 100,000 for the minor child (W) with effect from 1 April 2022.
  • Other orders of trial court confirmed: Appellant to pay medical bills, school fees and scholastic materials for W; Respondent to provide shelter, food, clothing and bedding.
  • Both parents to agree on school for W for First Term 2023, or alternatively W to attend Buhinga Nursery and Primary School.
  • Appellant to pay school fees for W for term ending December 2022.
  • Order granting maintenance arrears of UGX 5,001,400 set aside.
  • Order granting costs to Respondent in lower court set aside.
  • Each party to bear own costs of this appeal and in courts below.

Rules and key headnotes

Civil Procedure — Second Appeal — Scope of Appellate Review
On second appeal, the court is not required to re-evaluate the evidence in the same manner as a first appellate court would, as doing so would create unnecessary uncertainty. It is sufficient to decide whether the first appellate court has applied the relevant principles properly.
Family Law — Child Custody — Best Interest Principle — Paramount Consideration
The paramount consideration in matters of children is the best interest of the children and their welfare, which supersedes considerations such as which parent has a superior right to the children. The welfare of children is served better where both parents are involved in the upbringing of the children.
Family Law — Child Custody — Presumption Against Removal — Stability
Where a child has been in the custody of one parent since birth and there are no compelling reasons such as immorality, neglect, abuse or conviction for child abuse offences, the parent who has been in the life of the child and who has been looking after the child should retain custody in the event of separation of the parents, as that parent understands better the needs and weaknesses of the child and the child would not struggle getting accustomed to a different environment.
Family Law — Child Custody — Gender Neutrality — Equal Parental Rights
The general societal presumption that mothers are the best care givers and should be granted custody of children was severed by Article 31 of the Constitution which grants equal parental responsibility to both men and women without discrimination. Courts must examine and assess the facts of each case carefully before deciding custody, as there are instances where a father or male guardian may be best suited to be granted custody.
Family Law — Maintenance — Support Beyond Majority — Exceptional Circumstances
Though the Children Act defines a child as a person under 18 years and provides for maintenance only up to that age, the High Court may in exceptional circumstances invoke its equitable jurisdiction under sections 33 of the Judicature Act and 98 of the Civil Procedure Act to order continued parental support for children who have attained majority. Such exceptional circumstances include children with disabilities or development challenges, and school-going children who attained majority while still in school where the education phase started with parental support or was commenced with the expectation that support would continue to completion of the course.
Family Law — Maintenance — Quantum — Financial Capacity
When making orders of maintenance, courts must pay due regard to the financial standing and capacity of the parents and should make orders which can be satisfied given the parent's financial circumstances. The orders should be commensurate to the parent's ability to pay, and parents should not be punished for giving birth to children. Parental responsibility is for both parents and both must contribute subject to their financial capacity.
Family Law — Maintenance Arrears — Prior Order Required
It is irregular and illegal for a court to award maintenance arrears where there was no prior order directing a parent to pay maintenance which the parent then defaulted on. A parent who is in custody of a child is under a legal obligation under section 5 of the Children Act to maintain that child regardless of whether there is a court order, and cannot recover from the other parent what was spent in fulfilling that statutory duty in the absence of a prior maintenance order.

Legislation cited (13)

Cases cited (14)

  • Milly Masembe v Departed Asians Property Custodian Board Sugar Corporation (U) Ltd and Another (Civil Appeal No. 1 of 2000)
  • Sembatya v Alport Services Ltd (SCCA No. 6 of 1999)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • In the matter of Edith Nassazi (Adoption Cause No. 9 of 1997)
  • Anne Musisi v Hebert Musisi (2008) KALR 594
  • Triloknath Bhandari & Anor. Vs .R Gautama [1964] 1 B.A 606
  • Sarah Kiyemba v Robert Batte (Divorce Cause No. 127 of 2018)
  • Rwabuhemba Tim Mugal v Harriet Kamakune (Civil Application No. 142 of 2009)
  • Sanyu Lwanga Musoke v Sam Galiwaga (SCCA No. 48 of 1995)
  • Graham Vs. Graham 597 A.2d 385 (App DC 1991)
  • CM vs. SWA, Civil Appeal No. 21 of 2018 (Kenya)
  • Buligasiima v Kiiza & others (Misc. Application No. 1495 of 2016)
  • Prince J.D.C Mpuga Rukidi v Prince Solomon Kioro & other (Civil Appeal No. 15 of 1994)
  • Trade Agencies Ltd Vs. Paphos Wine Industries Ltd (1951) 1 ALL ER 873

Full judgment

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Birungi v Kakyo (32 of 2022) [2022] UGHCCD 244 (11 November 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.